SHAMSHUL YADALI SHEIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard rival submissions on this Criminal Appeal preferred by appellant/orig.accused challenging the judgment and order of conviction dated 29 th September, 2004 passed by the IV Adhoc Additional Sessions Judge, Thane in Sessions Case No.89 of 2004. Appellant/accused was convicted of the offence punishable under Section 302 and was sentenced to suffer imprisonment for life and to pay fine of Rs.5000/, in default imprisonment for one year. He was also convicted for the offence punishable under Section 328 and was sentenced to suffer RI for two years and fine of Rs.5000/, in default RI for six months. He was also convicted for the offence punishable under Section 201 of IPC and was sentenced to suffer RI for two years and to pay fine of Rs.5000/ in default RI for six months.

(2.) The case of prosecution, in nutshell, is as under : Complainant PW2 Abdul Razzak Gulab Shaikh was originally from native place from Jharkhand came and settled down in Navi Mumbai and having his business premises at Crawford Market, Mumbai. His cousin brother victim Harun Shaikh also came to Mumbai about 14 years prior to the incident which took place on or about 12 th September, 2003 and 13 th September, 2003. Victim was doing the business of selling scents and other cosmetics. Complainant who was running a business of fruit juice business at APMC Market and also has one shop at Crawford market which was looked after by his son Muzzaphar Shaikh PW4. On the night of 12 th September, 2003 victim Harun, one Attaullah Shaikh who is brother of PW2 and Muzzaphar Shaikh (who is son of PW2) left Crawford Market area after closure of the business. That time, victim Harun received a phone call on his mobile No. 9820883407. After receiving said call, Harun told other persons that he had some work and he will go home alone. On this, other persons went to their work. From the next day morning the whereabouts of victim Harun were not found and the shop of the complainant could not be opened as the keys were with victim Harun. House of Harun was visited by Muzzaphar (PW4). However, he was not present and two other persons in the house informed that victim had not come to the house even on the earlier night. Thereafter the shop was opened by calling the person to prepare duplicate key. However, the whereabouts of Harun were not found. Also according to the prosecution, the complainant was told by the maternal brother of victim and some other people that victim was in the company of appellant/accused on the night of 12.9.2003 at about 11:00 p.m. and that time both had consumed liquor. On 25.9.2003 also there was no trace of victim Harun, and as such PW2 complainant went to MRA Marg Police Station to lodge complaint. However, as the residence of Harun was at Shivdi, he was directed to lodge complaint with Dongri police station and as such a missing report was lodged with Dongri police station bearing No.37 of 2003.

(3.) According to prosecution, even on 16.9.2003 there was no trace of victim Harun, but, on that day enquiries were made regarding appellant/accused and revealing his address through one lady by name Haseena resident of Crawford Market, Dongri, he was taken to Dongri police station. There he was detained for enquiry. However, on 21.9.2003 he was released from custody as there was no material available against him as to his involvement in missing of victim Harun.